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Friday, November 22, 2013

Mixed Motive vs. Pretext Jury Instruction - COTW #169

The Third Circuit posted an unpublished opinion recently in Kull v. Kutztown University (opinion here) (let's pause for a moment so my non-attorney readers can digest that an opinion that was just published is "unpublished"). The Court included some nice and concise analysis of "mixed motive" vs. "pretext" jury instructions. I should note that the Plaintiff in this case failed to object at trial, so this analysis falls under a plain error standard:

“Whether a case is a pretext case or mixed-motives case
is a question for the court once all the evidence has
been received.” Starceski v. Westinghouse Elec. Corp., 54
F.3d 1089, 1098 (3d Cir.1995) (citation omitted). In a
pretext case, the plaintiff must show that gender was a
“determinative factor” in an adverse employment decision,
while in a mixed-motives case, the plaintiff need only show
that gender was a “substantial motivating factor.” See Watson
v. SEPTA, 207 F.3d 207, 215 (3d Cir.2000). A plaintiff must
demonstrate with “sufficiently direct” evidence that gender
was a motivating factor in the employer's decision to warrant
a mixed-motives instruction. See id.

The District Court did not commit plain error in treating
this as a pretext case and instructing the jury accordingly.
Kull did not present “sufficiently direct” evidence that gender
played a role in the University's decision. The evidence
Kull presented was circumstantial. He testified that certain
women had been tenured despite having fewer publications,
while a man's contract had not been renewed. From this
circumstantial evidence, the jury was to conclude that the
University applied less stringent criteria to women. It is not “sufficiently direct” evidence to justify a mixed-motives
instruction under Watson.

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Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.